US, Petitioner Say Court Should Uphold EBCP AFA for Solar Panel Exporter This Time

The U.S. and a defendant-intervenor defended the Commerce Department’s use of adverse facts available in another Export Buyers’ Credit Program case April 10 before the Court of International Trade. A Chinese solar cell exporter was slapped with the AFA after one of its customers refused to provide a non-use certificate (Risen Energy Co. v. U.S., CIT # 23-00153).

In its final results, Commerce said that significant gaps had been left in the countervailing duty review’s administrative record after the Chinese government refused to cooperate -- a regular occurrence in EBCP proceedings. Risen had voluntarily attempted to fill those gaps, the department admitted, but the exporter’s efforts hadn’t been enough because it couldn’t provide a non-use certificate from one customer.

Commerce’s failure to actually request customer EBCP non-use certificates in a questionnaire to Risen was not relevant to the case, the government and petitioner Alliance for American Solar Manufacturing said in their motions opposing Risen’s bid for summary judgment. Alliance said that Risen, not Commerce, is responsible for creating an adequate record.

“Risen knew well that the certifications were required for a finding of non-use, and it provides no indication that it would have been able to provide them if further requested by Commerce, given its statement that its customer was unwilling to cooperate,” it said.

In its brief, the government said that non-use certifications are not “required” by Commerce, but are rather “respondents’ own proposed alternative path to remediate the deficiencies in the record resulting from the [government of China]’s refusal to fully cooperate.”

The U.S. acknowledged that the court has remanded AFA findings due to EBCP to Commerce many times in the past (see 2308280034, 2305030063 and 2205270061). But it said that most of those cases “predate revisions to Commerce’s practice” regarding the program.

Under its “revised practice,” Commerce will, if it receives non-use certificates from every one of a respondent’s customers, issue supplemental questionnaires to gather more information on customers’ loans and finances, it said. Upon receipt, it will proceed to verify those questionnaires, it said.

The U.S. also admitted that CIT remanded a few more EBCP cases after Commerce revised its practice, including another brought by Risen (see 2311170034). However, it pointed out that the court occasionally sustains AFA when it finds verification of non-use of EBCP to be too difficult without cooperation from the Chinese government (see 2212160035), especially if CIT finds Commerce explained its reasoning adequately (see 2209140029).

It argued that this is the situation at present.

“Although the evidence provided by Risen and the government of China may support a suggestion of non-use on its face, it does not resolve the fact that, for verification, Commerce will need to tie Risen’s claims to its customers’ books and records,” the government said. “Commerce has explained, in previous instances, that doing so without a list of partner banks from the government of China amounts to ‘looking for a needle in a haystack.’”

It said that Commerce has found non-usage of EBCP to be verifiable if a respondent provides certificates as to such from all of its customers, but Risen didn't.

The government also said that the fact that Risen’s one recalcitrant customer “accounts for a relatively small amount of shipments of subject merchandise” during the period of review -- 1% of its sales, according to the exporter -- is also irrelevant. It said that “even if Commerce is unable to verify one small importer, Commerce is left with incomplete factual information as to whether Risen, as a whole, used the program.”

Risen has previously unsuccessfully attempted to amend its case to include a challenge to the department’s countervailing of the Chinese government’s Article 26(2) Tax Exemption Program, as Judge Jane Restani found that the exporter hadn't yet exhausted its administrative remedies (see 2311300020).